As part of our June edition of Employment Online, we reported that the Employment Bill proposes to repeal the statutory dismissal, disciplinary and grievance procedures which all employers will no doubt be familiar with. In their place, an ACAS Code of Practice will be introduced which appears to be more flexible, informal and straightforward. The great news for employers is that failure to follow the ACAS Code will not automatically lead to a finding of unfair dismissal as is currently the case.
However, these proposals are not expected to take effect until April 2009 and so for now, employers are stuck with the statutory procedures. There has been a recent spate of cases that serve to remind employers of their – sometimes onerous – obligations. However, it is not all bad news as this article serves to demonstrate.
The case of Selvarajan -v- Wilmot, dealt with the employer’s delay in dealing with a statutory dismissal procedure. In this case, the employees had claimed for unauthorised overtime. They were summarily dismissed for gross misconduct. Unfortunately, the employer took four months to deal with their appeal against dismissal. The employees relied on a series of earlier cases which held that failure to deal with any appeal against dismissal within a reasonable period of time meant that the dismissal was automatically unfair. In the Selvarajan case, the Court of Appeal found that unreasonable delay did not make the dismissal automatically unfair as long as the statutory procedure had been completed. Therefore, even though there was a delay, it could not be said in this case that the procedure had not been ‘completed’. The employees therefore failed in their claim for unfair dismissal.
This case should be of comfort to employers by confirming that delay in completing the disciplinary procedure will not give rise to an automatic unfair dismissal. However, employers should not leave themselves open to allegations that they failed to complete the statutory procedure – and in turn, a finding of an automatically unfair dismissal – by delay in dealing with appeals against dismissal. Completion of a simple procedure is all that is required to be followed and prompt action can avoid costly claims, particularly as failure to do so can result in an uplift of up to 50% of the employee’s compensation.
Remember! – Do not delay in completing disciplinary/dismissal procedures.
The case of Boyd -v- Renfrewshire Council serves as a stark reminder of an employer’s obligation to inform an employee in advance of a disciplinary hearing that they are at risk of dismissal. Furthermore, full details of the conduct which the employer is complaining of must also be provided in advance.
In this case, Mr Boyd was dismissed for deliberately and wilfully taking an unauthorised break with a view to causing disruption. The evidence showed that Mr Boyd thought that he might be issued with a written warning but did not contemplate that his conduct was so serious that he would be dismissed. The employers made the fatal error of not informing Mr Boyd prior to his disciplinary hearing that if found guilty of misconduct, a possible sanction was his dismissal. They also did not advise in their letter which asked him to attend the disciplinary hearing that his actions were deemed to be ‘wilful’ or that he intended to cause disruption. As a result, Mr Boyd did not appreciate the seriousness of the matter and did not therefore give the real reasons for his actions. It was found that his subsequent dismissal was unfair.
Remember! – An employer should clearly set out to an employee – in writing and before the disciplinary hearing – the full allegations against him and that, if proven, they could lead to a summary dismissal.
The case of Clyde Valley Housing Association -v- MacAuley laid down important principles regarding how to bring a valid grievance and showed that the Tribunal requires employees to set out the full basis of their grievance before bringing a claim at the Tribunal.
In this case, Ms MacAuley claimed constructive dismissal and disability discrimination. Her solicitors wrote to Clyde Valley to set out a series of allegations in an attempt to follow the modified grievance procedure. Clyde Valley sought clarification of exactly what acts and conduct it was that she was complaining about. As these were not provided, Clyde Valley then wrote again advising that they could not address the grievance as they did not have enough information to respond adequately.
The Employment Appeals Tribunal held that the Claimant was under an obligation to set out her grievance and the basis for it. The written statement must ‘contain the answers to the essential questions that one would expect to arise in a grievance, namely: ‘Who? What? Where? When? Why?” As the Claimant’s solicitors’ letter did not meet the basic requirements, the Claimant’s claim was dismissed.
Furthermore, the case of Cannop and Others -v- The Highland Council also highlighted that the claim presented to the Tribunal must be essentially the same as the grievance as was earlier communicated.
Remember! – Always respond to any grievance as fully as possible. If the nature of the grievance is not clear, request further clarification.
Bad News: –
Of some concern to employers is the case of Procek -v- Oakford Farms Limited where the EAT ruled that a ‘grievance’ can still be deemed to be a statutory grievance even where the grievance itself says it is not.
In this case, the employee sent a letter to his employers that stated that he wanted matters addressed on an ‘informal basis’ and if this was not dealt with satisfactorily, he would then raise a statutory grievance.
The employee went on to bring a claim at the Tribunal but did not lodge a ‘formal grievance’ before doing so. The employer argued that the Claimant was barred from bringing a claim as he had not lodged a statutory grievance. However, the Employment Appeal Tribunal held that the original letter was nevertheless a valid grievance and therefore he could continue with his claim.
It is not unusual for employees to raise a grievance which appears to be on an ‘informal’ basis. The employee does not have to stipulate that a complaint/grievance is a ‘statutory grievance’ – all that is required is that it is in writing.
Remember! Treat any complaint or ‘grievance’ from an employee on a ‘formal’ basis. If in any doubt about your legal obligations under the statutory grievance procedures, seek legal advice.